Draft Motion to Dismiss or Affirm

    Motion to Dismiss or Affirm

Pursuant to Rule 16.1 of the Rules of the supreme court

of the United States, Appellees, Ralph Gingles, et 41., on

behalf of Ehe certlfied class of all black ciEizens of North

Carolina who are registered to vote, move that the Court

dismiss the appeal or affirm the judgment of the United

States District Court for the Eastern District of North

CaroLina on the grounds that the questions on which the

decision of the case depends are so unsubstantial as not

to need further argument.

Statement of the Case

0n January 27, L984, the United States District Court

for the Eastern District of North Carolina, sitting as a three

judge court, entered a unanimous Order which declared that the

apportionment of the North Carolina General Assembly (hereafter

"General Assembly") in six challenged multimember districts
and one single member district violate Section 2 of the Voting

Rights Act of 1955, as amended, 42 U.S.C. 51973 (hereafter

"S2 of the Voting Rights Act" or "Section 2"), and enjoined

elections in those districts pending court approval of a
L/

districting plan which does not violate Section 2.-

By subsequent orders, the District Court has approved

without modification the State's proposed remedial districts

1/ fh" District Court's Order did not affect 48 of
Carolina's 53 House of Representative Districts and did
affect 27 of North Carolina's 29 Senate Districts.

North
not



for six of the seven challenged districts, and primary elections

have been held in those districts. The District Court has not

acted on the Defendants' proposed remediaL apportionment of

one district, former House District No. 8, pending preclearance

of defendants' proposal under 55 of the Voting Rights, 42 TJ.S.C.

S1973c (hereafter "section 5").

The jurisdictional statement adequately sets forth the

procedural history of the action and the relevant statutes

involved. Tho re 'iaEEc€E r+** ltoEt.rrePeeEed,' However,

appeLlants' presentation of the facts material to consideration

of the questions presented is lelp€j^Ced+nd/incomplete. After

an eight day trial and review of volrrminous docr:ments and

lengthy stipulations of fact, the three judge District Court

made extensive and meticulous findingsr @ -*.-uj-

supported by substantial, and for the most Part uncontradicted,
i(

evidence . euns-ideragiort=o+-+he=ful:Hrcadth-ei the-Di-s+r*ct-

@is=essen,tirl ts the decision of this "rrrr". 
Q

q-
ffitrat_Fgason,' appellees susmarize the District Court's findings,
^6=-12'/arffiolra:

A. The Extent of Any History of
Official Discrimination That
Touched the Right to Regisuer
or Vote.

There is a current disparity in black and white voter

registration which is a legacy directly tracable to the direct

denial and chilling by the State of registration by black

citizens. The use of a literacy test until 1970 and anti-single

shot voting laws and numbered seat requirements until L972 had

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the intended effect of diminishing minority voting strength'

The racial animosities and resistence with which white citizens

have responded to attempts of black citizens to participate

effectively in the political process are stil1 evident today.

App. at 22a-25a.

B. The Extent to l.rlhich Voting is
Racidlly Polarized.

Within each challenged district racially poLarized voting

is persistent, severe, and statistically significant. App. at

38a- 39a. In House District No. 8 it is so extreme that,

all other factors aside, no bLack has any chance of winning.

App. at 46a. To have any chance of electing candidates of their

choice, black voters must rely on single-shot votinS, thereby

forfeiting their right to vote for a fu11 slate of candidates.

App. at 4La.

C. The Use of the MajoritY
Vote Requirement.

North Carolina has a majority voEe requirement which

necessarily operates as a general, ongoing impediment to any

cohesive voting minorityrs oPPortunity to elect candidates

of its choice in any contested primary. App. at 29a'30a.

B. Effects of Discrimination in
Education, Emplov.trent and Health.

North Carolina has a long history of public and private

racial discrimination in aLmost all areas of life. Segrega-

tory laws \./ere not repealed until the late 1960's and early

-3-



1970's. Public schools were not significantly desegregated

unEil the early 1970's. Thus, blacks over 30 years old

attended quaLitatively inferior segregated schooLs. Virtually
alL neighborhoods remain racially identifiable, and past discri-
mination in enrployment continues to disadvantage blacks. Black

households are three times as like1y as white households to

be below poverty 1eve1. The lower soci.o-economic status of

blacks results from the long history of discrimination, gives

rise to special group interests, and currently hinders the

group's abiLity to participate effectively in the political
process. App. at 26a-29a.

Use of Racial Appeals in Political
Camnaigris

From the reconstruction era to the present time, appeals

to racial prejudice against black citizens have been used

effectively as a means of infLuencing voters in North Carolina's

political- canpaigns. As recently as 1983, poLitical campaign

materials used in North Carolina reveal an urrmistakable inten-
tion to exploit white voters' existing racial fears and pre-

Judices and to create new fears and prejudices. App. at 3la-32a.

Extent of Election to Public Office.

The overall extenE of election of blacks to public office
at all leve1s of government is minimal in relation to the percen-

tage of blacks in the total population, and black candidates

continue to be at a disadvantage. with regard to the General

Assembly in.particular, black candidates have been significantly

E.

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less successful than whites. For example, black candidates

who have won Democratic primaries were three times as likely

to lose in the general election as were their white Democratic

counterparts. App. A. at 33a-34a, 37a-38a.

The leve1 of participation of black citizens in the

politieal- process is also minimal and is largely confined to

the relatively few forerunners who have achieved professional

status or othe:r.rise emerged from the generally depressed socio-

economic status which remains the present lot of the great

bulk of black citizens. App. A. at 47a.

Tenuousness of the Underlying
State Policv.

The State gave as its reason for the multimember districts

its policy of leaving counties whole in apportioning the General

Assembly. However, in 1982, when the challenged apportiorrments

were enacted, the State's policy was to divide counties when

necessary to meet population deviation requirements or to obtain

Section 5 preclearance. Many counties, both those covered by

Section 5 and those not covered by Section 5, were dtvided.

The specific dilution of black voting strength in the districts

challenged was kno\^m Eo and discussed in legislative delibera-

tions. .The policy of dividing counties to resolve some problems

but not others does not justify districting which results in
racial vote dilution. App. A. at 49a-50a

The policies behind the creation of Senate District No. 2

vTere to protect the white incumbent and to have the lowest

permissible size of black population which would survive Section

G.

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preclearance. These do not outweigh a racial dilution result.

App. A. at 50a-51a.

In response to the District Court i s findings, appellantts'

challenge only finding, the level of severity, but not the

existence, of racially polatLzed voting.

Based on its subsidiary findings, the District Court

made ultimate findings that:

1. Considered in conjunction with the totality
of relevant circunstances found by the court the
lingering effects of seventy ygafs of official
discrimination against black ciEizens in matters
touching registrition and voting, substantial to
severe racial polarization in voting, the effects
of thirty years of persistent racial appeals in.
politicai tanpaigns: a relatively {epressed socio-
Lconomic status iesulting in significant degree
from a century of de jure and de facto segregation,
and the continuing effect of a majority vote re-
quirement the creation of each of the multi-
uiember districts chall-enged in this action results
in the black registered voters of that district
being submerged-as a voting minority in the
distiict and-thereby having less oPPortunity. than
do other members of- the electorate to participate
in the political process and to elect rePresen-
tatives of their choice.

2. Considered in conjunction with the same
circr:mstances, the creation of single-member
Senate District No. 2 results in the black regis-
tered voters in an area covered by. Senate Dis-
tricts Nos. 2 and 5 having their voting strength
diluted by fracturing their concentration into
two districts in each of which they are a voting
minority and in consequence have less opportunity
than do other members of the electorate to
participaEe in the political process and Eo elect
representatives of their choice.

App.A.5la-52a.
The findings taken as a whole are more than adequate to

demonstrate that the District Court followed the congressional

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intent in analYzLng

ultimate finding of

facts of the case

District Court.

ARGUMENT

and to support thethe

the

The District Court Applied the Correct
Standard in Determining That the North
Carol-ina GeneraL Assembly Districts in
Question VioLate Section 2 of the Voting
Riehts Act.

4. The District Court correctly examined the totality of

the circumstances in determining that the election districts

in question have a discriminatory result.

Appellants assert, in the first question presented, that

"the district court erred by equating a violation of

Section 2 with the absence of guaranteed proportional rePresenta-

tion." Jurisdictional Statement at 9. This statement grossly

distorts the standard actually used by the District Court

in finding a violation and ignores the District Court's

thorough analysis both of the proper interpretation of 52 and

of the evidence in the record. In essence, appellants have

miscast the anaLysis of the District Court and then have com-

plained Ehat their distorted interpretation, not the District

Court's actual analysis, is an error of 1aw.

The acrual standard applied by the District Court is embodied

in its Ultimate Findings of Fact:

Considered in conjunction with the totality of' relevant circr:mstances found by the court...
the creation of each of the multimember dis-
tricts challenged in this action results in

-a



the black registered voters of that district
being submerged as a voting minority in the
distiict and-thereby having less oPPortunity
than do other members of the electorate to
participate in the political progess and to
elect representatives of their choice. App.
at 51a-52a.

section 2 of the voting Rights Act was amended in 1982

by the Voting Rights Amendments of 1982, 95 Stat- 131 (June

29, Lg82>. The amendment was enacted after extraordinary

national and congressional debate. The result of this monumental

congressional effort was an amendment to Section 2 which

provides that a claim of unlawful- vote dilution is established

Lf , "based on the totality of circrmtstances, " members of

a racial minority "have less oPPortunity than other members

to participate in the political process and to elect rePre-

sentatives of their choice." 42 U.S.C. 51973, as amended'

The Couurittee Reports accomPanying the amendmenE make plain

the congressional intent to reach election plans that minimize

or cancel out the voting strength of minority voters. S. ReP'

No. g7-4L7, 9th Cong., 2d Sess. at 28 (L982) (hereafter "Senate

Reporr")' H. Rep. No. 97-227, 97t:n^CoII$. r 1st Sess. at 17-18
2l

(1981) (hereafter "House Report")-

The Senate Report, at Pages 27-30, sets out a detailed and

specific road map for the application of the amended Section 2'

2l Appellants assert that the l-egislative history of the
Lg82 amendments is unclear because there is no conference committee
report. Jurisdictional Statement at 8. However, aS the Ho'use
unlnimously adopted S .L992, which had been rep-orted out of the
senate comrnittel ol tbg_iyqiciarv. and adoPES* By.5hF"i3B3E"a"fihiIE..;;;-;; ".ea-ior a conferEnge coffiittee or
iepoii. ---See APP. aE 9a n.7 - 

_g-



I^ILren caI1ed upon to apply the sEatute, as amended, to a claim

of unlawful dilution, Congress directed the federal courts to

assess the interaction of the ehallenged electoral mechanism

with the relevant factors enumerated in the Senate RePort at

28-29.

It is apparent from the analysis of Section 2 contained in the

Memorandr.rm Opinion and from the detailed assessment of the facts

that the District Court understood its Congressional charge

and applied the intent of Congress to the facts of this case.

Appellantrs assertion that the District Court required

"guaranteed" or "Safe" Seats tO be enacted whenever Possible

ignores the extensive discussion by the District Court to the

meani-ng and proper application of Secti on 2 of the Voting Rights

Act. App. at 11a-18a. In that discussion, the District Court

explicitly stated its interpretation of the standard to be

applied and the factors to be considered:

In dete:mining whether, "based on the tota-
lity of circuststancesr" a state's electoral
mechanism does so "resuLt" in racial vote dilu-
tion, the Congress intended that courts should
Look to the interaction of the chaLlenged
mechanism with those historical, sociaL and
political factors gener.ally suggested as Pfo-
bative of diLution in Wlrite v. Register and
subs equently elatorateE@ifth
Circuit in Zimsrer v. McKeithen, 485 F.2d
L297 (5rh Ciilffi, aff'd on
other grounds sub nom. East Carroll Parish
School-Board v. ltarshal@76)

ical1y include, p€r
the Senate Report accomPanying the compromise
version enacted as amended Section 2:

[Thereafter the District Court listed the factors enumerated

at pp. 28-29 of the Senate Report. I App. L2a-L3a,

-9-



The District Court did not ignore Wlrite v. Register, 4L2 U'S'

755 (Lg73), and its Progeny, nor did the District Court interpret

those cases to require ProPortionate rePresentation, as is Sugges-

ted by appel-ants. See App. L4a-15a. In fact, the quotation set

out by appellants to attempt to demonstrate that the District Court

interpreted the Pre-amendment cases to require ProPortional rePre-

sentation is only half a sentence, taken out of context' Juris-

dictional Statement at 9-10. The whole sentence must be read in

context with the remainder of the ParagraPh accurately to articulate

the District Court's interpretation of the Pre-anendment racial

dilution jurisprudence. The District Court states that a dilutive

result is indicated when the interaction of substantial and persistent

racial poLarLzation in voting patterns with a challenged electoral

mechanism, combined with other cultural, political, social and

economic factors which disadvantage racial minorities and

operate to diminish practical political effectiveness, oPerate

effectively to deny a racial minority with distinctive grouP

interests the political power to further those interests which

members alone would PresumPtively give it in an electorate not

polarLzed. App. L4a.

That the District did not equate this with ProPortionate

representation is demonstrated by its explicit statement, "ITJhe

fact that blacks have not been elected under a challenged districting

plan in nr.:.nbers proPortional to their Percentage of the popula-

tion Idoes not establish that vote dilution has resultedl"

I^lhat the District Court dld do was to consider and interPret

White v. Regester, supra, anditsProgeny, and in that context,

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strictly apply Section 2 of the Voting Rights Act as

,mended and interpretted by Congress in L982. In so doing

the District Court dete:mined that the use of multimember

districts for the districts in question, under totality of

relevant circumstances, has an iurperaissible discriminatory

result. The District Court exa:nined each factor specified

by Congress in the Senate Report and assessed them as a

totaliEy in reaching its ultimate finding. Appellants'mischarac-

terLzatLon of the standard does not make the actual standard

used erroneous.

$. The District Court's finding that the challenged

election districts deny appellees an equal opportunity to

participate in the political process and to elect rePresenta-

tives of their choice is supporEed by the evidence in the record.

Since the District Court applied the proper standard, its
ultimate findings of fact cannot be set aside on appeal unless

they are clearty erroneous. Federal Rules of Civil Procedure,

Rule 52(a); Rogers v. Lodge, 458 U.S. 613, 622-623, 627 (1982)

(clearly erroneous standard applies to trial court's finding that

an at Large voting system is being maintaj.ned for a discrimina-

tory purpose); Pullman-standard v. Swint, 456 U.S. 273, 287-2g3

(1982) (Rule 52(a) applies to ultimate as well as subsidiary

findings of fact). See also Velasquez v. Citv of Abilene, Tex.,

725 F.2d L0L7 , L02L (5th Cir. 1984) (clearly erroneous standard

applies to finding of discriminatory result under Section 2 of

the Voting Rights Act); NMCP v. Gadsden Co. School Bd. , 69L

F.2d 978, 980, 982 (lIth Cir. 1983) (applying clearly erroneous

- l1-



standard in reversing determination that at large system of

voting had neither discriminatory PurPose nor effect under

Fourteenth Amendment ) .

Under Rule 52(il, 8D appellate court may not reverse

the trial courtrs findings of fact as clearly erroneous unless

the appellate court has a "ilefinite and firm conviction that a

mistake has been comitted." U.S. v. U.S. Gypsr:m Co' , 333

u.s. 364,395 (1948).

The District court's finding of discriminatory result is

not clearly erroneous. The District court cLearly and exhaustively

examined the totaLity of the circumstances by assessing each

of the factors suggested by congress in the legislative

history. The District Court's complete and extensive findings

of fact contrast to appelLants' recitation of isolated facts '

Appellants ignore North carolina's extensive history of

intentional disfranchisement of black citizens and its

current result of significantly depressing b1'ack voter registra-

tionrAPP.at22a'26a;thepersistentuseofracialappeals
in cagpaigns in North Carolina from 1-950 up through the present,

App.at31a.32a;andthehisEoryofdejureanddefactoracial
segregation in North carolina in every area of 1ife. This

history has the current legacy of residentially and socially

segregated society, a black voting populace which received a

qualitatively inferior education, and a black population which

remains substantially d,epressed according to every socio-economic

indicator before the District Court, App. at 26a-29a- Appellants

-L2-



also ignore North Carolina's current use of a majority vote

requirement, App. 29a-30a, and the persistent racially

polarized voting. This poLatLzation has the result that, oD

the averdB€, 8L.72 of white voters did not vote for any black

candidate in primary elections, and in general elections, white

voters almost always ranked black candidates last or next to

1ast, except in heavily Democratic areas. In heavily DemocraEic

areas, black candidates were ranked last among democrats if not

last among all candidates. App. at 40a.

Instead, appellants focus on the erratic electoral success

of some black candidates. I^lhile pointing out every black

success, appellants ignore the more nurnerous black failures.

The district Court found, from uncontracdicted evidence,

that between L959 and the time this lawsuit was filed there

had been between one and four black members of the North

Carolina House of Representatives out of a total of 120 members.

None was elected before L969. Between 1975 and 1983 there had

been either one or two black senators out of 50. None was

elected before that time. Furthermore, in the six multimember

districts in question, between 1970 and 1982, black candidates

were three times as 1ike1y to lose in general elections as were

their white Democratic counterParts. App. at 33a-34a.

In addition, the District Court found that, although 22.42

of the statets population is black, blacks hold only 97" of the eity

council seats (402 of these are from majority black election

districts); 7.37" of county courmission seats; 4Z of sheriff 's

offices ; and lZ of the offices of Clerk of Superior Court. Of

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19 black mayors, 13 are in majority black municipaLities. No

black has been elected to the Congress of the United States

as a representative of this state. App. at 33a.

On a county by county basis appellants also paint a lopsided

picture. In Forsyth County appelLants specify isoLated instances

of electoral success but ignore electorial failures such as:

(1) the uniform defeat of appointed black incumbents which

resulted in no blacks being elected to the House of Representa-

tives from Forsyth County in 1978 and 1980; (2) the defeat in
L980 of the black who had been elected to the County Comrj.ssion

Ln L976 which resulted in a return to an all white County

Conmission; and (3) the defeat in 1978 and 1980 of the black

who had been elected to the Board of Education Ln L975 returning

the Board of Education to its previous all white status in 1978.

Appellants donotmention that House District No. 8, which

is 397" black in population and has four representatives, has

never elected a bl,ack representative. App. at 36a.

In addition, Mecklenburg County, which is big enough to

have two majority black House Districts out of eight seats and

one majority black Senate district out of four seats has this

century elected only one black senator (from L975-L979) and

one black representative (in 1982, after this lawsuit was filed).
App. at 34a.

The District Court noted the bLack electoral successes and

the black failures and concluded, "[T]he success that has been

achieved by black candidates to date is, standing a1one, Eoo

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minimal in total nr:rnber and too recent in relation to the

Iong history of complete denial of any elective opportunities

to compel or even arguably to support an ultimate finding
that a black candidate's race is no longer a significant adverse

factor in the political processes of the state either generally

or specifically in the areas of the challenged districts."

App.37a-38a.

Rather than requiring Buaranteed election, and rather

than simplistically considering erratic examples of electoral

success, the District Court properly considered the extent

of election as one factor in Ehe totality of circr:mstances leading

to its conclusion of discriminatory resulE.

The determination of whether or not an election system has

an illegal discriminatory result requires findings of fact

which blend "history and an intensely local appraisal of the

design and impact of the...muluimember district in the light

of past and present reality, political and othersrise." trIhite v.

Regester, 412 U.S. at 769-770. The District Court in this action

engaged in just this "intensely 1ocal appraisal. " Its conclu-

sion of discriminatory result is based on voluminous evidence

in the record. An assertion that the ultimate finding of the

District Court is clearly erroneous is so unsubstantial that

argument on that question is not warranted.

O. The District Courtts interpretation and application

of Section 2 is consistent with the application of Section

2 by the courts of other circuits.

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The District Court interpreted and applied the 1982

amendments to Section 2 in a manner that is consistent with the

application of Section 2 by the courts of other circuits.

The courts have uniformly interPretted the 1982 amendment to

Section 2 as removing intent as a necessary element of racial

vote dilution claims brought under the statute. App. at 11a;

United States v. Marengo Co. Comn. , 73L F.2d L546, L563, L564

(11-th Cir. 1984); Jones v. Citv of Lubbock, 727 F.2d 354, 379-380

(5th Cir. 1984); Valasquez v. Citv of Abilene, 725 F.2d LOL7,

LO2L-23 (5th Cir. 1984); Buchanan v. Citv of Jackson, 708 F.2d

f066 , L07L-72 (6th cir. 1983).

The COurts of other circuitq as did the Court below, have

interpretted the amended Section to require the trial- court to

exa:nine the factors listed at pages 28-29 of the Senate Report

and, considering the totality of the circunstances, determine

whether the election method in question operates to deny minorities

an equal opportunity to participate in the political process and to

elect representatives of their choice. U.S. ,. M"r.ogo Co.,

731 F.2d at 1565-1555; Jones v. Lubboqk,727 F.2d at 384-385;

Velasquez v. Abilene, 725 F.2d at L022-23; Rvbicki v. State Bd.

of Elections, 574 F.Supp. LL47,1148-50 (E.D. I11. 1983) (three

judge court).

Nor have other courts required the complete absence of

black electoral success in order to find a violation. U.S. v.

Marengo Co.,73L F.2d at L572; Major v. Treen,574 F.Supp.325

- 16-



I
<d

n-^.

B
351-352 (8.D. La. 1983) (three judge court); Rvbicki v. +ate.
Bd of Elections, 574 F.Supp. at 1151 and n.5. The conclusion

of the courts, including the District Court herein, that the

election of some minority candidates does not compel the

finding of absence of discriminatory result is consistent

with Ehe clear intent of Congress as stated in the Senate Report:

"IT]he election of a few minority candidates does not 'necessarily

foreclose the possibility of dilution of the black vote', in

violation of this section." S. Rep. aE n.115.

Since there is no conflict anong the circuits, and since

the District Courtfs interpretation of the amended Section 2

is consistent with the developing body of case law under the

amended statute, appellees have not raised a substantial

question which warrants plenary considertion by this Court.

The District Court's Finding of
Severe Racially Polarized Voting
Is Not Clearlv Erroneous.

fr. Rule 52(a) applies to the District Court's finding of
polarized voting.racially

The District court found Ehat within aLl Ehe challenged

districts racially polarLzed voting exists to a persistent
and severe degree. App. at 38a. Althougtr appellants challenge
this as an error of 1aw, the finding of severe raciarly
porarized voting is a finding of fact which, under Rule

52(a) of the Federal Rules of civil procedure, may

not be set aside unless it is clearly erroneous. Rogers v. Lodge,

-L7 -



458 U.S. at 623, 627 ,(clearly erroneous rule applies to Ehe

subsidiary findings of fact which underly the Court's ultimate

finding that the at large method has discriminatory purpose);

Jones v. Lubbock, 727 F.2d 364, 380 (5th Cir. 1984) (applying

clearly erroneous standard to review of finding of racially

poLarlzed voting under Section 2 of the Voting Rights Act);

cross v. Baxrer, 604 F.2d 875, 879 (5rh Cir. L979), (applying

Rule 52(a) Eo'Zim.gr factors"), vacated on other grds', 704

F .2d L43 (5rh Cir. l-983 ) .

Just as this Court dete:mined in Rogers v. Lodge, ElfPE,
that Rule 52(a) applies to a court's subsidiary findings from

which an inference of discriminatory purpose is drawn, Rule 52(a)

applies to the subsidiary findings on which an ultimate finding

of discriminatory resul-t is based.

The District Court's finding of racially polarLzed voting

whole and is not clearlyis supporEed by the record viewed as a

erroneous.

The District Court's finding of racially polatzed voting

was based on the testimony of appellees' expert of his statistical

analysis of every election for the General Assembly in which

there has been a black candidate in the multimember districts

in question for the three election years preceding the trial.
This was supplemented by an analysis of all county wide elections

with black candidates in trIi1son, Edgecombe and Nash counties

as there were an insufficient number of General Assembly elections

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Appellants offered no contradictory analysis and appellants'
expert witness did not question the accuracy of the data, the

reliability of the data, or that the methods of analysis used

were standard in the literature. App aE 38a n.29. In fact,
appellants' expert conceded that the polarization of the voting
was statistically significant for each of the elections analyzed.

Nonetheiess, appel-lants contest the District Court's

finding of racially polarLzed. voting ciring examples from only

one post-litigation election year, L982, ignoring the data from

1980 and 1978. This is particularly dangerous as rhe Disrrict
Court concluded that 1982 was "obviously aberrational" and that
whether or not it will be repeated is sheer speculation. Among

the aberrational factors was the pendency of this lawsuit and

the one Eime help of black candidates by white Democrats who

wanted to defeat single member districts. App. at 37a. This

skeptical view of post-litigation electoral success is supported

by the Legislative history of the VoEing Rights Act and the

case law. Senate Report at 29, n.115; Zimmer v. McKeithen, 485

F.2d at 1307; NAACP v. Gadsen Co. Echool Board, 69L F.zd 978,

with black candidates in those counties.
3l

T,.rere examined. App. at 38a-39a.-

983 (1lth Cir. L982).

In addition to being'drawn only

Ehe examples given by appellants are

In all, 53 elections

from post-litigation elections
misleading and deceptively out

R*
a_.%, L_

a?-d-\-.e,Z
Y..?

B

l/ Arr"llants apparently limit their challenge to the finding
of racially polaxLzed voting to those areas not covered by 55, and
do not include either House District No. 8 (l,Iilson Edgecombe, and
Nash Counties) or Senate District No. 2, as Ehey do not discuss
facts from either of those areas.

-l9-



of context.

(a) Appellants point out that in 1982 Mecklenburg

House primary, black candidate Berry received 502 of the qhite

vote. The District Court noted this stating that iE "does not

alter the conclusion that there is substantial racially polarized

voting in Mecklenburg County in primaries. There were only

seven white candidates for eight Positions in the primary and

one black candidate had to be elected. Berry, the incr:mbent

chairman of the Board of Education, ranked first among black

voters but seventh among whites." App. at 42a. The other black

candidate was ranked last by white voters but second, after

Berry, by blacks.

(b) Appellants point out that Berry received votes fuort 422 of the

whitevoters in the general election and that whites ranked him seventh

among the candidates. That was a higher Percentage of white

votes than any other black candidate in a general election ever

received, incLuding an incumbent Senator in 1978. The average

percent of white voters who voted for black candidates in the

Mecklenburg County districts was 34.67, or approximately one

third.
(c) Appellants point out thaE in the L982 Senate general

election in Durhnm County black Republican Barnes received votes -(

froa 177. of the white voters but only 5Z of the black voters. <*
_r" ar"

The eleefion actuallv took place in 1978 (App. aE 43a). The ^"'r,,-"e-The election actuaLly took place in 1978 (App. aE 43a). The 
>-3*C

result simply points out that not all black candidates are -=k-'"\P,ern7-
"the candidate of their choice" of the black corurunity. It n,"-

certainly does not demonstrate a willingness of white voters 
-nl 

-'

to vote for black candidates.

-20-



a

(d) & (k) Appellants point out that in the L982 House

general election in Durham County, bLack candidate Spaulding

received votes frorl. 477" of the white voters and won. Petitioners

fail to note that in the L982 general election there $ras no

Republican opposition, and Spaulding was, for all practical
purposes, unopposed. Thus, a majority of white voters failed
to vote for the black .incumbent even when they had no other

choice. App. at 44a.

In the primary in Durham County in L982, Spaulding had

received gOZ of the black vote and 372 of the white vote while

another black candidate, Clement, received 327" of the black

vote and 267. of the white vote. Again, Clement's race does not

make him the candidate of choice of the black conraunity.

Appellees also fail to point out that in that primary there

were only two white candidates for three seats so at least one

black had to win. As the District Court noted, "Even in this
situation, 637" of white voters did not vote for the black

incr:mbent, the clear choice of the black voters. At least 372

of white voters voted for no black candidate even when one $las

certain to be elected." App. A. at 44a.

(e) & (f) Although Polk received 322 of the white vote

and was successful in the 1982 Senate primary for Mecklenburg

County, white voters ranked him fifth for four seats while

black voters ranked him first. In addition, he losE in the

general eLection with white voters ranking him sixth out of

seven candidates while blacks continued to rank him first.

-2L-



a'a

(g) & (h) Appellants point out that in Forsyth County

two black candidates in 1982 were successful but fail to note,

as the District court did, that white voters ranked two black
candidates seventh and eighth out of eight candidates for five seats in the

general election while black voters ranked them first and second.

App. at 43a. In addition, no black candidate ever got votes

from more than 402 of,white voters in a primary and most got

nnder 302. This includes two black candidates who were running

as appointed incumbents and were defeated.

(i) & (j) Appellants point to Dan Blue's eLectoral success

in Wake County but fail to note that, in this county in which

winning the Democratic primary assures election, in primaries

60Z to80Z of white voters did not vote for the black candidate com-

pared to 762 and 802 of black voters who did. App. A. ar 44a-45a.

(1) As a final example, while noting Ehat black elected

incumbents have been re-elected, appellants fail to note that
black Democratic candidates who survive Ehe primary are only one-

third as like1y as white Democrats to win in the general elections
and that black appointed incumbents have uniformly been defeated.

Thus, appellants focus on bits and pieces of evidence taken
l!"b,A",n 6A"l^d ,out of context. Appellants do not, as Fe4l+i,r€d-, exat'ine the

record as a who1e. The three judges who heard the evidence did
consider each of the facts which appellants point out, together
with the surrounding circr:mstances, and concluded that these

pieces did not alter the concLusion of severe and persistent
racially polarized voting. This conclusion is not elearry
erroneous.

aa



Appellants erroneously cLaim that the District Court

determined racially polarization by labeling every election in which

less than 502 of the whites voted for the black candidate as

racially polarized. Jurisdictional Statement at 17. Although

iE is true that no black candidate, whether or not opposed and

whether or not an incumbent, ever managed to get votes from

more than 502 of white voters, this is not the standard the

District Court used.

Instead, the District Court defined racially polarj-zed

voting as the extent to which black and white voters vote

differently from each other in relation to the race of the

candidates. App. at 39a, n.29. It based its ultimate con-

clusion of severe and persistent racially polarized voting

on an exhaustive analysis of the evidence. The District

Court's assessment can be surmnarized in three findings:

1. The correLation between the race of the voter and

the race of the candidate voEed for was statistically signi-

ficant at the .00001 1evel in every election analyzed. Although

correlation coefficients above an absolute value of .5 are

relatively rare and those above .g are extremely rare, al1

correlation coeficients in this case vrere between .7 and .98

with most above .9. App. A. at 38a-39a. and n.30.

2. In all but two elections the degree of polarLzation

was so marked that the results of the election would have been

different depending on if it had been held among only white

voters or among only black voters. The two exceptions were

-23-



lite

SlJPP

eLections in which black incrrmbents were re-e]ected, one

unopposed, and neither receiving votes from, a majority of the
a/24a114i

white voters. The Court accepted idsP€nd€++t€' expert' s use

of the te:m "substantively significantrr in these circumstances.

App. A. at 39a-40a and n.31. Although appellants' expert 
\q"

offered no alternative / ?.
/L

definition supported either by case law or political scLencJ <.

rature. App. at 40a, n.32

{.. The District Court considered voting Patterrls to

ort its conclusion of severe racial poLarLzation as follows:

On Ehe average, 8L.72 of white voters did not
vote for any black candidate in the primary
elections. In the general elections, white
voters almost always ranked black candidates
either last or next to last in the multi-can-
didate field excePt in heavily Democratic
areas; in these latter, white voEers consis-
tently ranked black candidates last among
Demociats if not last or next to last among
all candidates. In fact, aPProximately trwo-
thirds of white voters did not vote for
black candidates in general elections even
after the candidate had won the Democratic
primary and the only choice was to vote for
i Repubtican or no one. Black incumbency
alleiiated the general 1eve1 of polarization
revealed, but it did not eliminate it. Some
black inir:mbents were reel-ected, but none
received a majority of white votes even when
the eLection was essentially uncontested.

App. A. at 40a.

These findings are more than adequate to suPPort the

conclusion that voting in the districts in question is racially

polarized. The finding is not clearly erroneous.

-24-



3. The District Court's

voting is consistent with the

52 of the Voting Rights Act.

Appellants assert Ehat racially poLatLzed voting is probative

of vote dilution only if it is always outcome deteminative.Uf .\

This Court and the Fifth Circuit have cotrmented that racially t 
..

poLarized voting can give rise to an inference of discriminatory

purpose in the maintenance of an at large election system if

that racially polarized voting is so severe as to assure the

election of white candidates on1y. Rogers v. Lodge, 458 U'S'

at 623. Nevett v. Sides , 57L F.2d 2Og, 223 and n.16 (5th Cir'

L978) . However, the evidence needed to Prove discriminatory

purpose is not the Srme as the evidence needed to Prove discrimina-

tory result. AppelLees know of no case which suPPorts the

theory that racial-1y polarized voting is not probative of

assessment of raciallY PolatLzed

findings of other courts aPPlYing

:",""::',:=:r;";""j:::: ::.::::'.'o'f :'':'
The result which is prohibited by 52 is that black voters

have less opportunity than do white voters to elect candidates

of their choice. In districts such as those in question, in

which approximately 207. of the registered voters are b1ack,

the consistent failure of almost two thirds of white voters to

vote for black candidates is certainly one factor which contri-

butes to those black voters having less oPPortunity than do whites

to elect representatives of their choice. Appellants argument

is, in essence , an argument that any black electoral Success

4t
which che black candidate received substantial black support,
the polarization was outcome determinative in ftFe.la€€- that
the black candidate, even though he was the top choice of black
voters, Iost because of the paucity of support among white

{-a

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voEers. -25-